Investing in equity crowdfunding

The investor should be informed about some essential features regarding raising venture capital through online portals.

Risk of losing capital

The term "innovativestartup " is used to define a company whose shares or quotas representing the share capital are not listed on a regulated market or on a multilateral trading system and whose exclusive or main corporate purpose is the development, production and marketing of innovative products or services with high technological value.

For this reason, the "innovative" component of the sector to which the company is aimed and the nature of a "newly established" company, constitute a greater investment risk for the client than the traditional participation in the capital of any company listed on a regulated market or multilateral trading facility.

SMEs and innovative SMEs, although at a more advanced stage of their life than start-ups, also present this risk characteristic due to their specific nature.

The magnitude of the risk should make the client aware of the need to take specific precautions so that the capital invested directly in the innovative startup or SME, even indirectly, through UCITS or corporations that, in turn, invest primarily in SMEs, does not represent a significant portion of their assets and is not intended for a short or medium-term investment objective.

Illiquidity risk

The financial instrument of participation in the capital of an innovative startup or SME (both in the case of direct investment in the capital of the companies and in that of indirect investment through UCITS or corporations which in turn invest in SMEs) is defined as "illiquid", i.e. it is an instrument which could encounter various types of difficulties when it is sold:

• difficulty in finding a counterparty interested in buying it;
• difficulty in negotiating a transfer price without having to apply a larger or smaller discount;

The above implies for an 'illiquid' instrument the risk of realizing a lower gain or a significant loss of the capital initially invested.

Prohibition of profit distribution

Article 25 of Decree Law No. 179 of 18 October 2012, entitled "Further Urgent Measures for the Growth of the Country", converted with amendments into Law No. 221 of 17 December 2012, prohibits innovative start-ups from distributing profits for the entire duration of their qualification as an innovative start-up (currently 60 months from the date of registration in the Special Section for Innovative Start-Ups in the Companies' Register, a limit extended by a further 12 months by the "Decreto Rilancio" - Decree Law No. 34 of 19 May 2020).

Tax benefits

Investments in the share capital of 'eligible' innovative startups and innovative SMEs (pursuant tothe Ministerial Decree of 7 May 2019), registered in the special section of the Companies Register reserved for innovative startups or innovative SMEs, benefit from the tax benefits for income tax purposes (the benefit does not operate, however, for IRAP purposes) introduced by Article 29 of Decree-Law No. 179/2012 converted with amendments by Law No. 221/2012 (the "Growth Decree Bis").

Any tax benefits acquired may be forfeited if the investor liquidates the investment before the envisaged time.

Tax treatment benefits may vary according to the evolution of national tax legislation.

Beneficiaries

These tax benefits apply to individuals subject to personal income tax under Title I of the Consolidated Income Tax Act ("TUIR", Presidential Decree No. 917 of 22 December 1986) and to individuals subject to corporate income tax under Title II of the TUIR who make an investment in the capital of eligible innovative start-ups or innovative SMEs in a tax-privileged period.

For a comprehensive overview of the benefits granted to innovative startups, please visit the Facilities section of the website (which summarizes all the facilities available to both innovative startups or SMEs and investors, with links to the relevant texts of the applicable legislation).

Exemptions from company law for innovative startups and SMEs

Article 26 of Decree-Law No. 179 of 18 October 2012 provides for a series of derogatory provisions with respect to the provisions set forth in company law in favour of innovative start-ups.

Decree Law No. 3 of January 24, 2015 ("Investment Compact"), converted by Law No. 33 of March 24, 2015, extended these exemptions also to innovative SMEs.

In summary

1. option to extend by twelve months the period of so-called "carry forward" of losses (from the end of the following fiscal year to the end of the second subsequent fiscal year) and, in cases of reduction below the legal minimum, to allow the deferral of the decision on recapitalization by the end of the following fiscal year;
2. the option to use, also for innovative start-ups established as limited liability companies, institutions allowed only for S.p.A.'s, in particular the determination of special rights attributed to the shareholders, through the creation of categories of shares also without voting rights or with voting rights not proportional to the shareholding, or the issue of participatory financial instruments;
3. the right to offer to the public shares in innovative start-ups established as limited liability companies. the possibility to offer to the public shares in innovative start-ups established as limited liability companies (Srl), thus facilitating their access to capital regardless of the chosen corporate form (through portals for online capital raising);
4. faculty of derogation from the absolute prohibition of transactions on one's own shareholdings if the transaction is carried out in implementation of incentive plans that envisage the assignment of financial instruments to employees, collaborators, members of the administrative body or providers of works or services, including professional ones (stock options and work for equity);
5. the right to issue financial instruments that provide equity or administrative rights, excluding the right to vote on shareholder decisions.

EXEMPTIONS TO BANKRUPTCY LAW (only for innovative start-ups)

Article 31, paragraph 1 of Law Decree 179/2012 establishes that, in case of business crisis, innovative start-ups are not subject to bankruptcy proceedings other than those provided for by Chapter II of Law no. 3 of 27 January 2012

Therefore, the legislator has excluded innovative start-ups from being subject to the procedures set forth in Royal Decree no. 267 of 16 March 1942, such as bankruptcy, composition with creditors and compulsory administrative liquidation.

The exemption operates exclusively

1. in the presence of the qualification of innovative start-up
   
2. for a specific period of time, the first 4 years of activity of the company starting from the date of its incorporation, and in the presence of all the requirements for innovative start-ups provided by art. 25, paragraph 2
   

The composition and management of the business crisis of an innovative start-up is therefore resolved by the procedure for the composition of the crisis due to over-indebtedness and liquidation of assets provided for by Law n.3 of 27 January 2012, a tool that allows to reduce the time of judicial liquidation, and above all does not focus on the loss of capacity of the entrepreneur - unlike what happens in bankruptcy and other insolvency procedures - but rather on the separation of the company's assets reserved for creditors.

Article 31, paragraphs 2 and 3, of Law Decree no. 179/2012, prescribes another facilitation, establishing that, once the term of twelve months has elapsed from the registration in the Companies' Register of the decree opening the liquidation of the innovative start-up, access to the data of the relevant shareholders registered in the same register is inhibited to the public, even in the case where such information is organized in databases, remaining from that moment exclusively reserved to the judicial and supervisory authorities.

For further details:

• art 26 and 31 DL 179/2012
• investment compact DL 24 January 2015

BUSINESS PLAN

The person who intends to conduct an Offer of financial instruments through an authorized portal for the collection of capital online must include among the documentation relating to the Offer conducted by the Offerors, also a business plan prepared with criteria as close as possible to the formats and principles commonly accepted in order to provide all the information necessary for a rational investment.

The operator of the portal shall publish the business plan of the Offeror produced by the latter, pursuant to Consob Regulation 18592/13.

A business plan generally contains:

1. Summary description of the investment project and illustration of the type of company that is carrying out the business initiative in pursuit of its corporate purpose.
2. Presentation of the curriculum vitae of the entrepreneur and management (past experience and role in the initiative).
3. Analysis of the potential and reference market, characteristics of the competition and identification of strengths and weaknesses, competitive positioning, market shares.
4. Sales objectives, distribution channels and commercial organization, possibly linked to a marketing and advertising communication plan related to the development of the brand and product/service.
5. Main risks connected to the exercise of the activity related to the business project.
6. Description of the technical feasibility of the project in relation to the production process, administrative and environmental authorizations, the need for investments in production facilities, technological infrastructure or commercial channels, the availability of manpower and infrastructural services such as logistics and transport, energy, telecommunications.
7. Economic-financial feasibility plan with an indication of the overall financial requirements (for technical and intangible investments and to finance the company's start-up and working capital) and the relative mix of hedging instruments.
8. Information on the expected profitability of the investment and the risk factors that may negatively affect it, starting from realistic and prudential assumptions.
9. Indication of the investors already involved in supporting the project and a well-quantified proposal for new investors regarding the overall contribution of new financial resources required.
10. Chronological development program of the main phases of the project and related activities, with details of the resources involved.

REGULATION AND BYLAWS OF A UCITS

The Regulation of an OICR is the document that describes the rules to be followed by the OICR.

The document generally outlines the purposes of the fund, the investment policy, the duration of the investment period and the duration of the fund, the methods for calculating the value of the fund's units, the custodian bank, as well as the fund's operating rules.

In particular, Art. 37 of Legislative Decree no. 58 of 24 February 1998 (Consolidated Law on Finance, abbreviated to "TUF"), with specific reference to mutual funds, indicates the following:

"1. The regulations of each mutual fund define the characteristics of the fund, regulate its functioning, indicate the manager and the custodian, define the division of tasks between such parties, regulate the relationships between such parties and the participants in the fund.

2. The Regulations shall establish in particular

1. the name and duration of the fund
2. the procedures for participating in the fund, the terms and conditions for issuing and redeeming certificates and for subscribing and redeeming units, as well as the procedures for liquidating the fund;
3. the bodies responsible for the choice of investments and the criteria for the allocation of investments
4. the type of assets, financial instruments and other securities in which the fund's assets may be invested
5. the criteria relating to the determination of the income and results of the management as well as the eventual modalities of distribution and apportionment of the same
6. the expenses to be borne by the fund and those to be borne by the asset management company;
7. the extent or criteria for determining the commissions due to the savings management company and the charges to be borne by the unitholders;
8. the manner of advertising the value of the units;
9. if the fund is a feeder fund.

[...]

The Regulation on Collective Investment Management (adopted with The provision of the Bank of Italy of 19 January 2015) in TITLE V - CHAPTER I, establishes the general criteria and the minimum content of the management regulations for mutual funds.

The same drafting principles must also be followed by the by-laws of an OICR, in particular, of a SICAF or a SICAV, which are the other two types of OICR provided for in our legislation together with mutual funds.

The Articles of Incorporation of a SICAF or a SICAV contain the essential rules governing its corporate organization

The by-laws therefore set forth the rules of internal organization of the investment company and are the source of duties (of the members of the corporate bodies and of the shareholders) which are linked to such rules.

At the same time, in the case of SICAVs and SICAFs, it is also the place to regulate the manager's obligations towards investors such as, by way of example, the payment of investors' financial commitments, the management of investors' defaults, the establishment and assignment of functions of committees outside the corporate organization (e.g. advisory board), the regulation of crisis situations (suspension of investment activity, early termination of the investment period, replacement of the management team, etc.), limitations of liability and indemnities.

Article 35-quater (Share capital and shares of the Company), provides, with reference to the Articles of Association of the Company:

[...]

5. The articles of association of the Company shall specify the manner in which the value of the shares and the issue and redemption price shall be determined, as well as the frequency with which the shares may be issued and redeemed.

6. The articles of association of the Company may provide for

1. limits on the issue of registered shares
2. particular restrictions on the transferability of registered shares;
3. the existence of more than one investment compartment for each of which a particular class of shares may be issued; in such case, the criteria for allocating overheads among the various investment compartments shall be established
4. the possibility of issuing fractions of shares, it being understood that the allocation and exercise of corporate rights are in any case subject to the possession of at least one share, in accordance with the provisions of this chapter.

[...]

Art. 35-quinquies (Capital and shares of the Sicaf), provides, with reference to the Articles of Association of the Sicaf:

[...]

3. The articles of association of the Sicaf shall indicate the procedures for determining the value of the shares and any equity financial instruments issued.

4. The by-laws of the Sicaf may provide for

1. limits on the issue of registered shares;
2. particular restrictions on the transferability of registered shares;
3. the existence of more than one investment sub-fund for each of which a particular category of shares may be issued; in such case the criteria for the allocation of overhead costs among the various sub-funds shall be established
4. the possibility of issuing fractions of shares, it being understood that the attribution and exercise of corporate rights are in any event subject to the possession of at least one share, in accordance with the provisions of this chapter;
5. in the case of a reserved Sicaf and without prejudice to the provisions of Article 35-bis, paragraph 4, the possibility of making payments on the shares subscribed in several instalments, following a commitment by the shareholder to make the payment at the request of the Sicaf itself on the basis of investment needs.

[...]

Glossary

In order to clarify what the Consob Regulation refers to when it mentions UCITS, it is necessary to observe the basic definitions found in the various letters of Article 1 of Legislative Decree no. 58 of 24 February 1998 (Consolidated Law on Finance, abbreviated as "TUF"), of which we propose an extract:

"Art. 1 (Definitions) [...]

i) "società di investimento a capitale variabile"(Sicav): the open-ended OICR constituted in the form of a company limited by shares with variable capital with registered office and general management in Italy having as its exclusive object the collective investment of the assets raised through the offer of its own shares;

i-bis) "società di investimento a capitale fisso"(Sicaf): a closed-end UCI established as a joint-stock company with fixed capital with registered office and general management in Italy whose exclusive object is the collective investment of the assets gathered through the offering of its own shares and other participatory financial instruments;

j) "mutual fund": an OICR constituted in the form of autonomous assets, subdivided into units, established and managed by a manager;

k) "Undertaking for collective investment"(OICR) the body set up for the provision of the service of collective asset management, whose assets are collected among a plurality of investors through the issue and offering of units or shares, managed upstream in the interest of investors and autonomously by them as well as invested in financial instruments, credits, including those disbursed from the assets of the UCI, participations or other movable or immovable assets, according to a predetermined investment policy;

k-bis) "Open-end UCI": an UCI whose participants have the right to request the redemption of units or shares out of the assets of the UCI, in the manner and at the frequency provided for by the regulations, by the articles of association and by the offering documents of the UCI;

k-ter) "Closed-end UCI": UCIs other than open-end UCIs;

l) "Italian UCIs": mutual funds, Sicavs and Sicaf;

n) "Collective savings management": the service provided through the management of OICR and the related risks;

o) "savings management company"(SGR): the joint-stock company with registered office and general management in Italy authorised to provide the service of collective savings management;

[...]

Collective asset management is an activity reserved for SGRs, Sicavs, and Sicafs, subject to the supervision of the Bank of Italy, according to the procedures established in the TUF and in the Regulations on collective asset management.

Withdrawal, revocation and reconsideration

The 'non-professional' investor (i.e. the investor other than professional investors or the other categories of investors indicated in article 24, paragraph 2) has the right to withdraw from the investment within 7 (calendar) days of the order and in the case of a consumer pursuant to the Consumer Code within 14 (calendar) days of the order.

The withdrawal is exercised in the manner indicated on the Portal in the information section "Information on the management of the Portal" by electronic communication to the email address recesso@mamacrowd.com.

The investor also has the right to withdraw whenever there is a change relating to the Offer which may significantly affect the choice to accept the Offer. In this regard, the right of withdrawal is triggered when, between the moment of acceptance of the Offer and the moment when the Offer is definitively closed or the delivery of the financial instruments has taken place, a significant new fact occurs or a material error or inaccuracy concerning the information displayed on the portal is detected which is likely to affect the investment decision. The right of withdrawal may be exercised within seven days of the date on which the new information was brought to the attention of investors by means of an electronic communication to the email address revoca@mamacrowd.com.

If, following a revocation, the (non-professional) investor decides to rejoin the scheme, he/she is guaranteed the right to withdraw within 7 (calendar) days of the new membership order.

As indicated above, the non-professional investor who corresponds to the definition of "Consumer" given by the Consumer Code, pursuant to Articles 67-duodecies and 67-septiesdecies of the Code itself, is also recognized the 'right of withdrawal' to be exercised within 14 days (calendar) from the date of the order by sending an e-mail to ripensamento@mamacrowd.com.